The people appeal by leave granted the circuit court's order affirming the district court's dismissal of the district court's charge against defendant of violating the criminal abortion statute, M.C.L. § 750.14; MSA 28.204. The district and circuit courts concluded that the statute is unconstitutionally vague. We reverse and remand for reinstatement of the charge against defendant.
The statute, which on its face purports to criminalize all abortions performed at any time during pregnancy, except when necessary to preserve the life of the mother,
Defendant, a medical doctor specializing in obstetrics and gynecology, was charged with violating the criminal abortion statute, M.C.L. § 750.14; MSA 28.204, for allegedly inducing the abortion of a fetus of approximately twenty-eight weeks, and altering a patient's medical records in violation of M.C.L. § 750.492a(1)(a); MSA 28.760(1)(1)(a). Defendant filed a motion to dismiss the charge that alleged violation of M.C.L. § 750.14; MSA 28.204, arguing that the statute is unconstitutionally vague, is unconstitutional on its face, and has been repealed by implication, and that the complaint is defective for failing to allege viability of the fetus or lack of necessity to preserve the health of the mother.
The district court determined that the complaint was not defective and that the statute was not unconstitutional on its face, but dismissed the charge on the ground that the statute had been repealed by implication and was void for vagueness. On the people's appeal, the circuit court concluded that the district court erred in finding that the statute had been repealed by implication, but agreed with the district court that the statute was void for vagueness. This Court granted the people's application for leave to appeal.
Shortly after the United States Supreme Court decided Roe, supra, the Michigan Supreme Court, in Bricker, supra, addressed the constitutionality of the statute at issue in the instant case. Rather than declare the Michigan statute unconstitutional as irreconcilable with Roe, the Bricker Court construed this criminal abortion statute to conform to the dictates of Roe and Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973). The Court said:
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In light of the declared public policy of this state and the changed circumstances resulting from the Federal constitutional doctrine elucidated in Roe and Doe, we construe § 14 of the penal
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See also Larkin v. Cahalan Prosecutor, 389 Mich. 533, 537, 208 N.W.2d 176 (1973), in which the Court stated that the constitutionality of M.C.L. § 750.14; MSA 28.204 "is discussed and decided in [Bricker], decided this day."
Defendant argues that M.C.L. § 750.14; MSA 28.204, which by its express terms prohibits all abortions except those necessary to save the mother's life, was impliedly repealed by the Legislature's subsequent enactment of legislation that regulated, rather than prohibited, abortions. Defendant argues that the district court properly held that there is a clear conflict because the subsequent statutes purport to regulate conduct that M.C.L. § 750.14; MSA 28.204 makes criminal. We disagree.
The subsequent legislative enactments defendant relies on are statutes requiring parental consent,
Repeals by implication are not favored and will not be indulged in if there is any other reasonable construction. Wayne Co. Prosecutor v. Dep't of Corrections, 451 Mich. 569, 576, 548 N.W.2d 900 (1996). The intent to repeal must very clearly appear, and courts will not hold to a repeal if they can find reasonable ground to hold the contrary. Id. The presumption is always against the intention to repeal where express terms are not used, and the implication, in order to be operative, must be necessary. House Speaker v. State Administrative Bd., 441 Mich. 547, 562, 495 N.W.2d 539 (1993), quoting Attorney General ex rel Owen v. Joyce, 233 Mich. 619, 621, 207 N.W. 863 (1926) (citation omitted). [T]he Legislature is presumed to act with knowledge of appellate court statutory interpretations, Gordon Sel-Way, Inc. v. Spence Bros., Inc., 438 Mich. 488, 505, 475 N.W.2d 704 (1991), and ... silence by the Legislature for many years following judicial construction of a statute suggests consent to that construction. Baks v. Moroun, 227 Mich.App. 472, 489, 576 N.W.2d 413 (1998); Craig v. Larson, 432 Mich. 346, 353, 439 N.W.2d 899 (1989).
After Bricker was decided in 1973, the Legislature enacted various statutes regulating
We also must reject defendant's argument that the Bricker Court's discussion of the constitutionality of the criminal abortion statute was mere dictum because Bricker was not a physician and therefore none of the constitutional underpinnings of Roe applied.
Black's Law Dictionary (7th ed.) defines obiter dictum as "[a] judicial comment made during the course of delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not precedential (though it may be considered persuasive)." The Michigan Supreme Court has declared, however, that "`[w]hen a court of last resort intentionally takes up, discusses and decides a question germane to, though not necessarily decisive of, the controversy, such decision is not a dictum but is a judicial act of the court which it will thereafter recognize as a binding decision.'" Detroit v. Michigan Public Utilities Comm., 288 Mich. 267, 299-300, 286 N.W. 368 (1939), quoting Chase v. American Cartage Co., Inc., 176 Wis. 235, 238, 186 N.W. 598 (1922). A decision of the Supreme Court is authoritative with regard to any point decided if the Court's opinion demonstrates "application of the judicial mind to the precise question adjudged, regardless of whether it was necessary to decide the question to decide the case." People v. Bonoite, 112 Mich.App. 167, 171, 315 N.W.2d 884 (1982).
In deciding whether Bricker's preRoe conviction under M.C.L. § 750.14; MSA 28.204 for conspiracy to commit an abortion was lawful, the Bricker Court found it necessary to determine Roe's effect on Michigan's criminal abortion statute. Rather than simply declare that Roe was inapplicable because Bricker was not a physician,
Defendant further argues that Roe v. Wade, supra, held that "abortion statutes, as a unit, must fall," and that in every case involving a statute containing language similar to that considered in Roe, federal courts have struck down the entire statute and have not remanded the case to a state court for interpretation and limitation. None of the cases relied on,
Defendant argues that M.C.L. § 750.14; MSA 28.204 is unconstitutionally vague because the threat of prosecution against physicians is an undue burden on the rights of women seeking lawful elective
As is evident from the dissent's discussion of the merits, defendant raises substantial constitutional issues. We must conclude, however, that these arguments cannot insulate defendant from prosecution in the instant case.
The repeated declarations by the United States Supreme Court that the determination of viability is a matter for medical judgment, Colautti v. Franklin, 439 U.S. 379, 386-389, 99 S.Ct. 675, 58 L.Ed.2d 596 (1979), overruled in part in Webster v. Reproductive Health Services, 492 U.S. 490, 109 S.Ct. 3040, 106 L.Ed.2d 410 (1989), and the fact that fetuses may now become viable long before a pregnancy reaches twenty-eight weeks, may, indeed, raise issues regarding the application and constitutionality of the statute as construed in Bricker, in a case where it is charged that the defendant intervened to abort a pregnancy of less than twenty-eight weeks' gestation.
We are unable to agree with the dissent that defendant may resist this prosecution on constitutional grounds because of deficiencies in the criminal complaint.
Grounded in a defendant's constitutional right of due process of law is the principle that "[a]n accused shall not be called upon to defend himself against a charge of which he was not sufficiently apprised." People v. Mast, 126 Mich.App. 658, 661, 337 N.W.2d 619 (1983), People v. Mast (On Rehearing), 128 Mich.App. 613, 341 N.W.2d 117 (1983).
We first note that because the district court dismissed the abortion charge against defendant before the preliminary examination, no criminal information was issued pertinent to that charge. See MCR 6.112(B), which provides that no information may be filed against a defendant until a preliminary examination has been held or has been waived, unless the defendant is a fugitive from justice.
The requirements for a criminal complaint are not the same as for an indictment or information. MCR 6.101 provides in pertinent part:
"The primary function of a complaint is to move the magistrate to determine whether a warrant shall issue." Wayne Co. Prosecutor v. Recorder's Court Judge, 119 Mich.App. 159, 162, 326 N.W.2d 825 (1982); see also M.C.L. § 764.1a(1); MSA 28.860(1)(1).
The requirements for an information are set forth in M.C.L. § 767.45(1); MSA 28.985(1), which provides in pertinent part:
The indictment or information shall contain all of the following:
The test for sufficiency of an indictment is: "`Does it identify the charge against the defendant so that his conviction or acquittal will bar a subsequent charge for the same offense; does it notify him of the nature and character of the crime with which he is charged so as to enable him to prepare his defense and to permit the court to pronounce judgment
An information may be amended at any time before, during, or after trial to cure any defect, imperfection, or omission in form or substance, including a variance between the information and the proofs, as long as the accused is not prejudiced by the amendment and the amendment does not charge a new crime. MCL 767.76; MSA 28.1016; People v. Stricklin, 162 Mich.App. 623, 633, 413 N.W.2d 457 (1987).
We conclude that the factual allegations in the instant complaint
14 were sufficient under the above standards because they adequately inform of the substance of the accusations. In addition, the factual allegations provide the basis from which commission of the legal elements of the charge can be inferred. Any deficiencies in the allegations of the actual charge, such as the failure to specifically allege that defendant believed that the fetus was viable and that he did not believe that the procedure was necessary to preserve the health of the mother, can be cured by amendment. 15
It is, of course, evident that the statute does not state a mens rea requirement or set forth an objective or subjective standard for evaluating such a requirement.
In light of Bricker, we reverse the lower courts' dismissal of the charge and remand for reinstatement of the charge and further proceedings consistent with this opinion. We do not retain jurisdiction.
MICHAEL J. KELLY, P.J., concurred.
JANSEN, J. (concurring in part and dissenting in part).
I concur with parts II through V of the majority opinion. I must dissent from part VI because I believe that the statute, M.C.L. § 750.14; MSA 28.204, is unconstitutionally vague, even as construed by People v. Bricker, 389 Mich. 524, 208 N.W.2d 172 (1973), because the statute fails to recognize the attending physician's constitutionally conclusive medical judgment regarding viability of the fetus or maternal health, fails to specify whether an objective or subjective standard governs, and fails to include a mens rea requirement. The constitutional deficiency of the statute has been compounded in this action by the criminal complaint, which is completely deficient in its allegations regarding defendant's conduct and cannot be saved by mere amendment. It is clear that the statute cannot pass constitutional muster in light of Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), and if the Legislature wishes to regulate abortion, then it must do so in a constitutional manner that acknowledges Roe and its twenty-seven years of reaffirmation by the United States Supreme Court.
This case arises out of an abortion performed by defendant, a medical doctor, on a woman (who will be referred to as the patient) on October 14 and 15, 1994. Defendant owned and operated two medical clinics in the cities of Highland Park and Bloomfield Hills. On October 14, 1994, the patient presented herself to the clinic in Highland Park because she wished to have an abortion. During the preliminary examination, the patient testified that she believed she was twenty-one or twenty-two weeks pregnant at the time she went to the clinic. In fact, she wrote on her form at the clinic that the date of her last menstrual period was April 25, 1994. According to a pregnancy calculator, using the last date of the patient's menstrual period, the patient was twenty-three or twenty-four weeks pregnant.
On October 14, 1994, the patient had an ultrasound performed on her by Rebecca Black, who has never been licensed or certified as an ultrasound sonographer. While performing the ultrasound, Black informed the patient that she might be "further along" in the pregnancy than believed and that it might not be possible to perform the abortion. The patient's testimony concerning the term of the pregnancy is entirely unclear. First, the patient stated that defendant performed an ultrasound himself immediately after Black performed one and defendant told the patient that her pregnancy had developed to "28 1/2 weeks or something like that." However, the patient had previously given testimony under oath before the state licensing board that she believed that defendant told her that the fetus was 27 or 27½ weeks. The patient testified before the licensing board that Black also informed her that the fetus was 27 or 27½ weeks.
According to the patient, the cost of an abortion varied in relation to the term of the pregnancy. Thus, when the patient first called defendant's clinic, she was told that the cost of an abortion, based on what the patient informed the receptionist regarding her gestational pregnancy, would be about $1,400 to $1,600. However, the patient stated that when defendant informed her that the pregnancy was actually
Rebecca Black, who identified herself as the medical supervisor and ultrasound technologist in defendant's two clinics, stated that she had worked for defendant for eight years and that she was fired in November 1994. Black, as has been stated, was neither licensed nor certified as an ultrasound sonographer, and her training consisted of learning ultrasound from a woman who was going to school to learn how to perform ultrasounds at a clinic where Black worked before working for defendant. Black testified that she believed that the development of the fetus was twenty-eight weeks, but conceded that a physician determines the gestational age of a fetus on the basis of the ultrasound images. Black further stated that she wrote down in the patient's record that the age of the fetus was twenty-eight weeks, and Black had a photostatic copy of that record with her at the preliminary examination. However, that record was never signed or initialed by defendant and the patient's original medical record indicates that the fetus was at twenty-four weeks gestation.
Additionally, Black had reported defendant to the Wayne County Medical Society for allegedly performing late-term abortions in late October or early November 1994. Black was apparently fired shortly after this report was filed. Black admitted that she had removed original documents and made copies of other documents from patients' files, without the knowledge or consent of the patients, to give to an investigator in order to build a case against defendant. In fact, Black admitted that she was told by Alice White of the Wayne County Medical Society that Black would need to collect evidence to support her claims against defendant. Thus, Black spent the final six to eight weeks of her job collecting documents from patients' medical files and turned them over to an investigator. Apparently, the propriety of Black's conduct is not the subject of an investigation by the Attorney General's office.
The criminal complaint, dated July 25, 1996, charged defendant with two counts: altering a patient's medical records, M.C.L. § 750.492a(1)(a); MSA 28.760(1)(1)(a), and violation of the criminal abortion statute, M.C.L. § 750.14; MSA 28.204. Specifically, count II of the complaint alleges:
MCL 750.14; MSA 28.204 states:
Any person who shall wilfully administer to any pregnant woman any medicine, drug, substance or thing whatever, or shall employ any instrument or other means whatever, with intent thereby to procure the miscarriage of any such woman, unless the same shall have been necessary to preserve the life of such woman, shall be guilty of a felony, and in case the death of such pregnant woman
The statute as written obviously cannot pass constitutional muster in light of the United States Supreme Court's decision in Roe. In an effort to save the statute from its constitutional deficiencies, our Supreme Court in Bricker, construed the statute so that it would not violate the dictates of Roe. In Bricker, supra, pp. 529-531, 208 N.W.2d 172, the Court stated:
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Although the parties expend a great deal of argument concerning a "trimester framework," the issue of viability of the fetus is critical because that is the constitutional standard. There is no "line-drawing" or judicial assumptions concerning the issue of viability. In Roe, supra, pp. 164-165, 93 S.Ct. 705 the United States Supreme Court stated that, "[f]or the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother." (Emphasis added). The Court's opinion in Bricker, supra, p. 530, 208 N.W.2d 172, is in accord with Roe because the Court held that "the effectuation of the decision to abort is also left to the physician's judgment; however, a physician may not cause a miscarriage after viability except where necessary, in [the physician's] medical judgment, to preserve the life or health of the mother."
In Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992), a majority of the justices reaffirmed the "essential holding" of Roe. Justice O'Connor, writing for a majority, stated at pp. 846 and 860, 112 S.Ct. 2791:
It must be stated at the outset and with clarity that Roe's essential holding, the holding we reaffirm, has three parts. First is a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viability, the State's interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman's effective right to elect the procedure. Second is a confirmation of the State's power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger the woman's life or health. And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman
Thus, Roe and Bricker and subsequent United States Supreme Court cases establish a proscription of abortions at the stage of viability (with the exception of endangerment to the life or health of the woman), not at the beginning of the third trimester or after passage of a certain number of gestational weeks. With regard to determining viability, the United States Supreme Court has stated:
In these three cases, [Roe, supra; Doe, supra; Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976)] then, this Court has stressed viability, has declared its determination to be a matter for medical judgment, and has recognized that differing legal consequences ensue upon the near and far sides of that point in the human gestation period. We reaffirm these principles. Viability is reached when, in the judgment of the attending physician on the particular facts of the case before him, there is a reasonable likelihood of the fetus' sustained survival outside the womb, with or without artificial support. Because this point may differ with each pregnancy, neither the legislature nor the courts may proclaim one of the elements entering into the ascertainment of viability—be it weeks of gestation or fetal weight or any other single factor— as the determinant of when the State has a compelling interest in the life or health of the fetus. Viability is the critical point. [Colautti v. Franklin, 439 U.S. 379, 388-389, 99 S.Ct. 675, 58 L.Ed.2d 596 (1979).]
In the present case, regardless of the actual age of the fetus, which is obviously a matter of factual dispute, the question is whether the fetus was viable at the time of the abortion. There is no allegation in the complaint that defendant aborted a post-viable, healthy fetus or that the abortion was unnecessary to protect the mother's life or health. Because the criminal complaint does not allege that the fetus was viable in the judgment of defendant (the attending physician) in light of the particular facts of the case before him or that there was a reasonable likelihood of the fetus' sustained survival outside the womb with or without life support, I would find that the criminal abortion statute is unconstitutionally vague as applied to his alleged conduct.
In order to pass constitutional muster, a penal statute must define the criminal offense
The constitutional deficiency with § 14 of the Penal Code, even as interpreted in Bricker, is that the statute does not tie the determination of viability to the attending physician's exercise of medical judgment. This deficiency has been compounded here by the criminal complaint. The Attorney General has charged defendant under § 14 for allegedly causing the miscarriage of a fetus that reached approximately twenty-eight weeks of age. The Attorney General argues that Roe and Bricker set forth a trimester framework by which to determine when the state can proscribe, and thus criminally prosecute, the performance of abortions, and that abortions performed after twenty-six weeks are, because of the age of the fetus alone, prohibited.
In Colautti, the United States Supreme Court struck down a section of a Pennsylvania statute on the basis that it was unconstitutionally vague. Specifically, the Court held that the viability-determination requirement was ambiguous and its ambiguity was compounded by the fact that the statute subjected the physician to potential criminal liability without regard to fault with respect to the finding of viability. See Colautti, supra, p. 390, 99 S.Ct. 675. The statute required the physician to conform to the prescribed standard of care if the physician determined that the fetus was viable or if there was sufficient reason to believe that the fetus may be viable. Holding that viability must be that as defined in Roe and Danforth, the Court found the "may be viable" requirement to refer to a condition that differed in some indeterminate way from the definition of viability as set forth in Roe and Danforth. Id., p. 393, 99 S.Ct. 675. The Court held that the statute did not allow the physician to make a determination in light of all attendant circumstances (psychological, emotional, and physical) that might be relevant to the well-being of the patient;
In ruling that the viability-determination requirement was ambiguous, the Court also held that the statute impermissibly subjected the physician to criminal liability without regard to fault. The Court noted that the statute did not require the physician to be culpable in failing to find sufficient reason to believe that the fetus may be viable. Because of the absence of a scienter requirement in the provision directing the physician to determine whether the fetus is or may be viable, the statute was said to be little more than "`a trap for those who act in good faith.'"% Id., p. 395, 99 S.Ct. 675 quoting United States v. Ragen, 314 U.S. 513, 524, 62 S.Ct. 374, 86 L.Ed. 383 (1942). Consequently, the Court held that the determination whether a particular fetus is viable is, and must be, a matter for the judgment of the responsible attending physician. To be constitutional, state regulation that impinges on such a determination must allow the physician the room the physician needs to make the best medical judgment. Colautti, supra, p. 397, 99 S.Ct. 675.
Recently, in Stenberg v. Carhart, 530 U.S. 914, 120 S.Ct. 2597, 147 L.Ed.2d 743 (2000), the United States Supreme Court reiterated the Roe and Casey post-viability requirement that "the governing standard requires an exception `where it is necessary, in appropriate medical judgment for the preservation of the life or health of the mother.'" Id., 530 U.S. at 929, 120 S.Ct. at 2609, 147 L.Ed.2d at 759, quoting Casey, supra, p. 879, 112 S.Ct. 2791. In Stenberg, the Court was faced with a Nebraska statute that purported to make criminal the performance of a "partial birth abortion." The Court found, inter alia, that the statute was unconstitutional because it lacked any exception for the preservation of the health of the mother. Stenberg, supra, 530 U.S. at 929, 120 S.Ct. 2609, 147 L.Ed.2d at 759. The Court, however, did not merely engraft the exception onto the statute.
In the present case, neither the statute nor our Supreme Court's interpretation in Bricker allows the physician to determine whether the fetus is viable in the judgment of the attending physician in light of the particular facts before the physician. Moreover, there is no scienter requirement regarding the determination of viability or the determination of medical necessity. The reason for these requirements was aptly stated in Women's Medical Professional Corp. v. Voinovich, 130 F.3d 187, 205 (C.A.6, 1997), where the court said, "[t]he determination of whether a medical emergency or necessity exists, like the determination of whether a fetus is viable, is fraught with uncertainty and susceptible to being subsequently disputed by others."
Accordingly, in light of the constitutional deficiencies of our criminal abortion statute, even with Bricker's judicial interpretation imposed, the statute must be declared unconstitutionally vague. I would affirm the lower courts' finding that the statute is unconstitutionally vague, albeit using a different analysis than the lower courts, and affirm the dismissal of the charge against defendant under the criminal abortion statute.
The Smith court noted that
The Smith court was referring to May v. State, 254 Ark. 194, 196, 492 S.W.2d 888 (1973), in which the Arkansas Supreme Court concluded that the appellant lacked standing to challenge the statute's constitutionality and stated that Roe and Doe`s effect was to strike down the prohibition as against physicians during the period preceding approximately the end of the first trimester. The May court determined that "[t]he cited section can be left intact as to laymen...." See Smith, supra at 926, n. 9, concluding that the quoted statement"does not rehabilitate the patent facial invalidity [of the statute] in terms of the statute's application to physicians."
Complainant is further advised that Merry Rosenberg engaged the services of Eric and Leonard Speckin, Forensic Document Examiners. Eric Speckin analyzed the documents which had been provided to Merry Rosenberg by Dr. Higuera and determined two significant forensic conclusions: First, that the file had previously contained a 28 week form due to impressions of that form found engraved into other documents in the file. Second, that the 24 week form, which was included in the file provided to Merry Rosenberg, was written with ink which was approximately six months newer than the October 14, 1994 date which appears on the form. Complainant advises this Court that assuming the conclusions of Eric Speckin to be true and accurate the 24 week ultrasound form was prepared after the demand for production of documents filed by Merry Rosenberg.
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In consequence of the above, Complainant states that:
Penalty: Felony, 4 years in prison.
2. Lack of Scienter Requirement
The Act's "medical emergency" definition requires the physician to determine "in good faith and in the exercise of reasonable medical judgment" whether an emergency exists. Ohio Rev. Code Ann. § 2919.16(F). Similarly, the medical necessity exception to the post-viability ban requires that the physician determine "in good faith and in the exercise of reasonable medical judgment" that the abortion is necessary. See id. § 2919.17(A)(1). Thus, both of these provisions contain subjective and objective elements in that a physician must believe that the abortion is necessary and his belief must be objectively reasonable to other physicians. This dual standard as written contains no scienter requirement. Therefore, a physician may act in good faith and yet still be held criminally and civilly liable if, after the fact, other physicians determine that the physician's medical judgment was not reasonable. In other words, a physician need not act wilfully or recklessly in determining whether a medical emergency or medical necessity exists in order to be held criminally or civilly liable; rather, under the Act, physicians face liability even if they act in good faith according to their own best medical judgment. [Voinovich, supra at 203-204. Emphasis added.]